| People v Ested |
| 2015 NY Slip Op 04861 [129 AD3d 858] |
| June 10, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Roger Ested, Appellant. |
Lynn W.L. Fahey, New York, N.Y. (Jonathan M. Kratter and David Greenberg ofcounsel), for appellant, and appellant pro se.
Kenneth P. Thompson, District Attorney, Brooklyn, N.Y. (Leonard Joblove, AmyApplebaum, and Amanda Muros-Bishoff of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Ingram, J.), rendered August 31, 2011, as amended September 2, 2011, convicting himof attempted murder in the second degree, assault in the second degree, criminalpossession of a weapon in the second degree, and criminal possession of a weapon in thefourth degree, upon a jury verdict, and imposing sentence. The appeal brings up forreview the denial, after a hearing (Marrus, J.), of those branches of the defendant'somnibus motion which were to suppress physical evidence and his statements to lawenforcement officials.
Ordered that the judgment is modified, on the law, by vacating the conviction ofcriminal possession of a weapon in the fourth degree, vacating the sentence imposedthereon, and dismissing that count of the indictment; as so modified, the judgment isaffirmed.
Contrary to the defendant's contention, raised in his pro se supplemental brief, theSupreme Court properly denied those branches of his omnibus motion which were tosuppress a handgun in his possession at the time he was arrested and his post-arreststatements to law enforcement officials. The defendant contended that the handgun andhis statements were the products of an unlawful search and arrest. However, thedefendant had no standing to challenge the warrantless search of an enclosed parking lotin which he was found by the police and arrested. At the suppression hearing, he failed todemonstrate a legitimate expectation of privacy in the parking lot (see People vRamirez-Portoreal, 88 NY2d 99, 108 [1996]; People v Rodriguez, 69 NY2d159, 162-163 [1987]).
Contrary to the defendant's contention, the Supreme Court did not deprive him of hisconstitutional right to represent himself. "A defendant's request to represent himself 'mustbe invoked clearly and unequivocally' " (People v Gillian, 8 NY3d 85, 88 [2006], quoting People v LaValle, 3 NY3d88, 106 [2004]). Here, the defendant's request to proceed pro se was notunequivocal. Rather, the request was made in the context of expressing dissatisfactionwith assigned counsel and as an alternative to his request for substitution of counsel, and,thus, the request did not "reflect an affirmative desire for self-representation" (Matter of Kathleen K. [StevenK.], 17 NY3d 380, 387 [2011]; [*2]seePeople v Gillian, 8 NY3d at 88; People v Jackson, 97 AD3d 693, 694 [2012]; People v Littlejohn, 92 AD3d898, 898 [2012]).
As the People correctly concede, the defendant's conviction of criminal possession ofa weapon in the fourth degree and the sentence imposed thereon must be vacated, andthat count of the indictment must be dismissed as an inclusory concurrent count ofcriminal possession of a weapon in the second degree (see CPL 300.30 [4];300.40 [3] [b]; Penal Law §§ 265.01 [1]; 265.03 [1] [b]).
The defendant failed to preserve for appellate review his contentions that thesentence imposed improperly penalized him for exercising his right to a jury trial and wasimproperly based on factual inaccuracies (see People v Hurley, 75 NY2d 887,888 [1990]; People vThompson, 119 AD3d 966, 968 [2014]; People v Brown, 38 AD3d 676, 677 [2007]). In any event,these contentions are without merit.
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contention, raised in his pro se supplemental brief, iswithout merit. Dillon, J.P., Dickerson, Roman and LaSalle, JJ., concur.